Citation Nr: 1519916
Decision Date: 05/08/15 Archive Date: 05/19/15
DOCKET NO. 13-18 234 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi
THE ISSUE
Entitlement to nonservice-connected death pension benefits.
ATTORNEY FOR THE BOARD
M. Young, Counsel
INTRODUCTION
The appellant is the surviving spouse of a Veteran who served on active duty from September 1942 to July 1943. The Veteran died in January 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 decision of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO).
FINDING OF FACT
For the entire period on appeal, the Appellant's countable income exceeded applicable maximum annual pension rates.
CONCLUSION OF LAW
The criteria for entitlement to payment for nonservice-connected death pension benefits have not been met. 38 U.S.C.A. §§ 1502, 1521, 1543 (West 2014); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.274 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. By correspondence dated in June 2011 and January 2012 VA notified the appellant of what VA would do with her claim and what she could do to help. The appellant was also provided notice as to how VA assigns effective dates.
There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. All necessary financial information pertaining to the claim has been associated with the record. VA's duty to assist is met.
Legal Criteria
Death pension benefits are generally available for surviving spouses as a result of a Veteran's nonservice-connected death. 38 U.S.C.A. § 1541(a). An appellant is entitled to such benefits if the Veteran served for 90 days or more, part of which was during a period of war; or, if the Veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability; and, if the claimant meets specific income and net worth requirements. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.3(b)(4), 3.274.
In this case, the Veteran had qualifying service of 90 days during a period of war. The evidence also establishes that the appellant is the Veteran's surviving spouse.
In order to receive benefits, a claimant must meet the net worth requirements found in 38 C.F.R. § 3.274 and not have an annual income in excess of the maximum annual pension rate (MAPR) as specified in 38 C.F.R. § 3.23. See 38 U.S.C.A. §§ 1502, 1521(j); 38 C.F.R. §§ 3.3(a), 3.274. In determining annual income, all payments of any kind or from any source are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 C.F.R. § 3.271(a). Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. § 3.271(a)(1). Nonrecurring income, received or anticipated on a one-time basis during a 12-month annualization period, will be counted as income for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(1), (3). Social Security benefits and state retirement benefits are not specifically excluded under 38 C.F.R. § 3.272; such income is therefore included as countable income.
The MAPR is published in appendix B of the Veterans Benefits Administration Manual M21-1 and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21. In the present case, the MAPR for an otherwise eligible claimant, without a dependent child, for 2011, the year during which the appellant filed the present claim, is $7,933.00. VA Manual M21-1, Part I, Appendix B. The applicable MAPR rate was increased to $8,219.00 on December 1, 2011, to $8,359.00 on December 1, 2012, and to $8,485.00 on December 1, 2013.
Analysis
After a review of all the evidence, the Board finds that for the entire appeal period, the Appellant's countable income exceeded applicable MAPR rates and is a bar to the receipt of death pension benefits.
At the time she filed her claim in February 2011, the monthly income reported by the appellant included monthly Social Security benefits in the amount of $956.00 (with another entry indicating Social Security benefits in the monthly amount of $557.00) and monthly pension benefits from the State of Mississippi in the amount of $844.90. In August 2011, she reported a monthly income of $3,166.64, including Social Security benefits in the amount of $653.00 a month and pension benefits from the State of Mississippi in the amount of $844.90 a month in addition to income from dividends and interest amounting to $1,668.24 a month. In September 2011 she reported that her monthly income from Social Security had increased, to $879.90 and her pension benefits from the State of Mississippi had increased to $879.00 for a total monthly income of $1,861.90. In March 2012 she reported that her monthly income from Social Security had increased, to $1,078.50. Her total monthly income was reported as $3,518.00.
During the appeal she initially reported a net worth of $278,040 which increased to $305,000 in March 2012.
The Board finds, therefore, that the Appellant had a total annual income of $37,999.68 in 2011 (based on August 2011 information provided by the appellant) and a total annual income of $42,216.00 in 2012.
The Appellant also identified monthly medical expenses of $246.50, resulting in annual medical expenses totaling $2,958.00. Total income may be reduced by amounts paid for unreimbursed medical expenses in excess of 5 percent of the applicable MAPR. Five percent of the applicable MAPR rate ($7,933.00) in effect at the time of the March 2011 claim is $396.65. Thus, annual medical expenses in the amount of $2,561.00 may be deducted from the total income of $37,999.00. This reduction results in a countable income of $35,437.65 in 2011. The Board finds that the Appellant's countable income of $35,437.65 greatly exceeds the applicable MAPR of $7,933.00 in 2011 and is a bar to the receipt of death pension benefits.
The Appellant has not submitted updated income information since 2012 and did identify any decrease in income at any time since 2011. She indicated her income increased in 2012, as noted above. The Board finds that the Appellant is credible in reporting current income in excess of the applicable MAPR rate. Accordingly, the Board finds that the Appellant's countable income continues to exceed the applicable MAPR and remains a bar to the receipt of nonservice-connected death pension benefits.
The Board notes that the purpose of the death pension program is to aid surviving spouses who are unable to provide themselves the basic necessities. Based on the information she has provided, this is not the situation. The Board recognizes the appellant's belief that she needs and is entitled to death pension benefits; however, there is no interpretation of the facts of this case which will support a legal basis for a favorable action with regard to the appellant's claim.
For these reasons, the Board finds that for the entire appeal period, the Appellant's countable income exceeds the statutory limits for entitlement to death pension benefits. Where the law and not the evidence is dispositive, the claim must be denied due to lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the Appellant's income exceeds the statutory limits, she is not legally entitled to death pension benefits. Therefore, the claim of entitlement to death pension benefits must be denied.
ORDER
Entitlement to nonservice-connected death pension benefits is denied.
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M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs